Child Support Credit For “Necessaries” Barred by Statute of Limitations in Huntingdon, TN: Martin v. Martin

Facts: When Mother and Father divorced, Mother was designated the custodial parent of their two children and Father was awarded visitation. Father was ordered to pay child support of $350 per month.

Almost immediately, the parties began exercising equal parenting time via alternating weeks. They agreed to cut Father’s child support obligation in half because they were equally dividing parenting time, but never obtained a court order approving the child support modification.

Shortly thereafter, Mother moved to Nashville. The parties’ son moved in with Father and their daughter continue to live primarily with Mother. From October 2003 through December 2009, Father paid no child support, nor did he file a petition to modify child support.

In December 2009, the parties’ son moved to Nashville and began living with Mother. In January 2011, Father resumed paying child support of $433 per month.

Mother petition for contempt and modify child support. She alleged a child support arrearage of $52,956, comprised of $29,350 in unpaid child support plus interest in the amount of $23,606.

Father alleged that he made child support payments directly to the parties’ son in the amount of $725 per month through December 2009. Father alleged these direct payments to the parties’ son were for his housing, food, clothing, transportation, healthcare, and education.

The trial court gave Father a $250 monthly credit for “necessaries” during the 76 month period when the parties’ son lived primarily with Father. Applying this credit, the trial court awarded Mother child support arrears in the amount of $23,983.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

A child support order is a judgment, enforceable in the same manner as any other judgment issued by a court of law. Tennessee Code Annotated § 36-5-101(f)(1) provides:

Any order for child support shall be a judgment entitled to be enforced as any other judgment of a court of this state, and shall be entitled to full faith and credit in this state and in any other state. Such judgment shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed…. If the full amount of child support is not paid by the date when the ordered support is due, the unpaid amount is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from the date of the arrearage, at the rate of twelve percent (12%) per year. All interest that accumulates on arrearages shall be considered child support.

Thus, once child support payments become due, they cannot be altered, reduced, or forgiven by Tennessee courts.

Although a trial court may not retroactively modify a parent’s support obligation, numerous Tennessee appellate court decisions grant trial courts the authority to offset child support arrears based on the obligor’s expenditures to provide necessaries for the child.

In order to maintain a successful claim for necessaries, the child support obligor must prove: (1) that the child needed the particular goods or services that were provided, (2) that the obligee had a legal obligation to provide the goods or services, (3) that the obligee failed to provide the goods or services, and (4) the actual cost of these goods or services.

The rationale is that a credit against the a child support arrearage is not a retroactive modification of support but is given in recognition that the obligor parent provided the support the court ordered in the first place.

After reviewing the record, the Court reasoned:

Mother further argues that Father did not prove that Mother had a legal obligation to provide necessaries for son. However, the original Divorce and Judgment clearly states that “the parties shall enjoy joint legal custody of the parties’ minor children with [Mother] having physical custody of the parties’ minor children.” Moreover, in Tennessee, children have a right of support from both parents, who are equally and jointly charged with their care, nurture, welfare, education and support. Parents have a duty to support their children until the children reach the age of majority or graduate from high school, whichever occurs later. Under Tennessee law, Mother has a legal obligation to support her son, and Mother’s testimony clearly reflects the parties’ agreement for each to provide support and necessaries for the child in his or her custody….

[A]ny credit for necessaries sounds in contract and must be commenced within six years after the necessaries were provided…. Because Mother’s petition to modify support was filed in April 2013, Father is time-barred from receiving any credit for necessaries prior to April 2007. The trial court credited Father $250 per month for 76 months beginning in October 2003 and ending in January 2010. Because Father is not entitled to receive a credit prior to April 2007, we vacate the award and remand to the trial court to make a fresh determination of the arrearages from April 2007 forward.

Accordingly, the trial court’s judgment was reversed and the matter remanded for reconsideration.

K.O.’s Comment: By my calculations, this decision will increase the principal balance of Father’s arrearage by $10,250.

Martin v. Martin (Tennessee Court of Appeals, Western Section, May 20, 2015). In a

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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